Politics & Policy

Roberts Gets It Wrong Again

(Pool Image/Getty)

The Affordable Care Act was drafted with extraordinary carelessness given its importance, and conservatives who say that the Obama administration has implemented it contrary to its plain meaning have strong arguments. So opined six justices of the Supreme Court, including its most liberal members, in King v. Burwell.

That is, unfortunately, the best thing about the majority opinion, which labors mightily to free the law from the inconvenience of its text. The text of the law authorizes federal subsidies on health-insurance exchanges “established by the state,” but does not authorize them on exchanges established by the federal government. Since most states have not established exchanges, reading the law the way it was written would limit the law’s reach. The administration therefore decided not to do so — and the Court has blessed its decision, and barred future administrations from revisiting it.

To reach this result, Chief Justice John Roberts first implausibly read “established by the state” to be an ambiguous phrase — Justice Antonin Scalia and the other two conservative dissenters thoroughly dismantled his arguments — and then chose the possible meaning that would best serve the act’s purposes. This second portion of Roberts’s argument has a superficial plausibility, but it too lacks merit.

#related#His point is that in the absence of subsidies, the law’s regulations would destroy insurance markets. Congress, he writes, could not have intended for the law to have this effect. But the question of what Congress intended in the absence of widespread state cooperation with the law is surely the wrong one to ask, since there is little evidence that Congress ever considered the topic.

Justice Scalia also raises the obvious counter-example: the Class Act, the federal long-term-care entitlement that Congress passed as part of Obamacare. The Class Act did not work because it had the very features that Obamacare generally, read according to its text, would have: The affected market would be unsustainable. It had to be repealed. The point of this counter-example is that it is entirely conceivable that a law, properly interpreted, would work badly or have perverse consequences, and it is not the Court’s job to interpret away provisions of the law to make it come out differently. Roberts responds that that the Class Act was a small part of the larger law and that Congress really wanted its larger law to work. Perhaps embarrassment at the weakness of this retort is what led him to put it in a footnote.

A ruling that the administration had exceeded its lawful authority would not necessarily have led to better health-care policy or a smaller government. It would not, by itself, have repealed Obamacare. That means that the contrary ruling is not a defeat for free-market health care or limited government. What it is a defeat for is the rule of law.

The Editors comprise the senior editorial staff of the National Review magazine and website.

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